AGLO 1974 No. 28 - Mar 5 1974
COURTS ‑- DISTRICT ‑- JUSTICE ‑- ELECTIONS ‑- ATTORNEYS
A nonlawyer who is currently serving as a full-time district court judge in a first class county may not file a declaration of candidacy for reelection in November, 1974, to a new term of office commencing in January, 1965, in view of the enactment of § 3, chapter 14, Laws of 1973, 1st Ex. Sess.; if a nonlawyer is presently serving as an incumbent district court judge, however, such a nonlawyer may serve out the remainder of his present term of office ending in January, 1975.
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March 5, 1974
Honorable Edward G. Ellis
State Representative, 14th District
304 North 61st Avenue
Yakima, Washington 98902 Cite as: AGLO 1974 No. 28
By recent letter you have requested our opinion with respect to the eligibility of a person who has not been admitted to the practice of law in this state to serve as a district court judge in a first class county. We paraphrase your questions as follows:
(1) May a nonlawyer who is currently serving as a full-time district court judge in a first class county file a declaration of candidacy for reelection in November, 1974, to a new term of office commencing in January, 1975, in view of the enactment of § 3, chapter 14, Laws of 1973, 1st Ex. Sess.?
(2) If question (1) is answerable in the affirmative, what filing fee would such candidate be required to pay?
(3) If question (1) is answerable in the affirmative, would the district court judge described therein be eligible to serve the term of office for which he would thus be running, if elected thereto?
(4) Is the incumbent district court judge described in question (1) eligible to serve out the remainder of his present term of office, which ends in January, 1975, in view of the enactment of § 3, chapter 14, Laws of 1973, 1st Ex. Sess.?
We answer question (1) in the negative, thereby rendering consideration of questions (2) and (3) unnecessary; we answer question (4) in the affirmative.
Prior to the enactment of § 3, chapter 14, Laws of 1973, 1st Ex. Sess., now codified as RCW 3.34.065, the eligibility and qualifications of district court judges (i.e., justices of the peace serving in counties operating under the 1961 justice court act)1/ were spelled [[Orig. Op. Page 2]] out in the following provisions of RCW 3.34.060:
"To be eligible to file a declaration of candidacy for and to serve as a justice of the peace, a person must:
"(1) Be a registered voter of the justice court district; and
"(2) Be either:
"(a) A lawyer admitted to practice law in the state of Washington; or
"(b)A person who has been elected and has served as a justice of the peace, municipal judge or police judge in Washington; or
"(c) In those districts having a population of less than ten thousand persons, a person who has taken and passed such qualifying examination for the office of justice of the peace as shall be provided by rule of the supreme court." (Emphasis supplied.)
By the foregoing 1973 enactment, however, the legislature provided that:
"After the next respective judicial elections following the effective date of this act, in counties of the second class and larger counties all justices of the peace and district court judges are required to have been admitted to the practice of law in the state of Washington before they may exercise the functions of their office." (Emphasis supplied.)
The portion of this section which we have underscored represents a house committee amendment to the original provisions of Senate Bill No. 2071 ‑ the bill from which chapter 14,supra, emanated. But for this amendment, the requirement that a justice of the peace or district court judge serving in a second class or larger county be admitted to the practice of law in the state of Washington would have taken effect prior to the next election of persons to that office in November, 1974. The apparent purpose of the house amendment, in our judgment, was to avoid the consequences of such an immediate requirement ‑ in terms of the creation [[Orig. Op. Page 3]] of mid-term vacancies. Thus viewed, it is our opinion that what § 3, chapter 14, supra, as enacted, means is simply that although an incumbent district court judge in a second or larger class county who is not an attorney may serve out the remainder of his current term, he will not be able to succeed himself following the next election ‑ nor will any other person who is not licensed to practice law in the state of Washington be eligible to serve during the next or any ensuing terms of the judicial offices affected by this legislation.
In accordance with the foregoing reasoning, it is our opinion that the individual described in your request, having initially been elected to his office under RCW 3.34.060(2)(b), supra, may continue to serve out the remainder of his current term ending in January 1975, even though a brief portion of that term will run beyond the November, 1974, general election at which district court judges in this state are next to be elected. But he will not be eligible (unless, of course, he should in the meantime be admitted to the practice of law in this state) to serve an ensuing term commencing after that election.
This leaves only the question of whether under these circumstances, the individual you have described will be able to file a declaration of candidacy later this year for election to such an ensuing term ‑ and, if so, what filing fee he will be required to pay.
In order to file a declaration of candidacy, a person seeking election to public office in this state is required by RCW 29.18.030 to make a declaration in the following form:
"I, , declare upon honor that I am a registered voter residing at No. street, (city or town of) (county of) , state of Washington, andam legally qualified to assume office if elected; that I hereby declare myself a candidate for nomination to the office of or position No. for the office of (fill in whichever blank is applicable) to be made at the primary election to be held on the day of , and hereby request that my name be printed upon the official primary ballots, as provided by law, as a candidate of the (do not fill this in if office sought is nonpartisan) party, and I accompany herewith the sum of [[Orig. Op. Page 4]] dollars, the fee required by law of me for becoming a candidate." (Emphasis supplied.)
In view of the portion of this declaration which we have above underscored, we do not believe that it will be legally possible for the person described in your request to be a candidate for reelection to the office that he currently holds. And, of course, this direct answer to the first of your four questions as above paraphrased renders the remaining question of filing fees moot.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Chapter 299, Laws of 1961.